Cri. Appeal No. 281 of 1991

9th November, 1998

Petitioner Counsel: Mr. G. K. GOLE, Mr. A. P. MUNDERGI
Respondent Counsel: Mr. I. S. THAKUR

JUDGMENT

VISHNU SAHAI, J.:- Through this appeal the appellants challenge the judgment and order dated 25-3-1991 passed by the 3rd Additional Sessions Judge, Kolhapur, in Sessions Case No. 73/89 convicting and sentencing them to undergo 2 years R.I. and to pay a fine of Rs. 500/- each, in default to undergo 2 months R.I.

2. In short the prosecution case is as under :

The deceased Narayan Santram Sonawane was the brother of Namdev Santram Sonawane P.W. 6 and father of Shantaram Sonawane P.W. 1. On 6-3-1989 Laxmibai the wife of Namdev Sonawane lodged an FIR at Ichalkaranji Police Station alleging therein that Narsing Sawanta Pol son of appellant Savanta Pole alongwith one Mahadev Pol committed rape on her daughter Sharawati. On the basis of the said FIR a case under section 376 of IPC was registered against the said persons. On this score there was enmity between Namdeo Sonawane and his family on the one hand and the four appellants on the other. It may be mentioned that the appellant Rajesh Pol and Vijay Pol are the real nephews of appellant Savanta Pol and appellant Krishna Shinde is the father-in-law of appellant Savanta Pol.

On 11-3-1989 at about 8.30 to 8.45 p.m. when the informant Namdev Sonawane and the deceased Narayan Sonawane were in Chandini Chowk area, the appellants came and started abusing the former. Narayan Sonawane asked the appellants as to why they were abusing Namdeo and asked them not to abuse him. On that the appellants started inflicting blows with kicks and fists on Narayan Sonawane who fell down as a result thereof. The evidence is that after he had fallen down the appellants continued beating him. Thereafter they ran away.

3. This incident is alleged to have been seen by Shantaram Sonawane, Kantilal Pol, Ashok Choudhari and Namdeo Shantaram Sonawane, P.Ws. 1, 3, 5 and 6, respectively. The said witnesses took Narayan Sonawane to KEM Hospital where the doctor pronounced him dead.

4. The FIR of the incident was lodged by Shantaram Sonawane the same day at 10.10 p.m. On the basis of it P.S.I. Sitaram Kamble P.W. 10 registered an offence punishable under section 302 read with 34 of IPC.

5. The investigation was conducted in the usual manner by P.S.I. Sitaram Kamble who after completing the investigation submitted the charge-sheet against the appellants.

6. Going backwards the autopsy on the corpse of Narayan Sonawane was conducted on 12-3-1989 by Dr. Ramchandra Fadnis P.W.7 who found on it the following external injuries :

1. CLW 1/2" x 1/4" on rt. upper lip with 1" diameter swelling around it.

2. Abrasion 1" at rt. cheek near rt. nostril obliquely directed.

3. Contusion 1" at the middle of left back with contusion.

4. 2 contusions above 1 1/2" x 2" in diameter at the post aspect of occipital protrubance with swelling around.

On internal examination Dr. Fadnis found two contusions of about 2" in diameter in the occipital region and linear fracture of the occipital portion.

After conducting the post-mortem examination Dr. Fadnis could not arrive at a definite conclusion regarding the cause of death and sent the viscera to the Chemical Analyst. After receipt of the viscera report he opined that death was as a result of injury to brain.

In the opinion of Dr. Fadnis the ante mortem injuries suffered by the deceased were possible by blows with kicks and fists.

7. The case was committed to the Court of Sessions in the usual manner where charge under section 302 read with 34 of IPC was framed against the appellants to which they pleaded not guilty and claimed to be tried.

During trial in all the prosecution examined 10 witnesses. Four out of them viz. Shantaram Sonawane, Kantilal Pol, Ashok Choudhari and Namdeo Sonawane, P.Ws. 1, 3, 5, and 6, respectively were examined as eye witnesses. In defence no witness was examined.

The learned trial Judge believed the evidence adduced by the prosecution and reached the conclusion that the appellants had committed an offence punishable under section 325 read with 34 of IPC. Accordingly he sentenced them on the said count.

Hence this appeal.

8. I have heard the learned counsel for the parties and perused the evidence on record. I have gone through the testimony of the four eyewitnesses of the incident and I find that the same has rightly been relied upon by the learned trial Judge. I find that the manner of assault deposed to by the 4 eye-witnesses viz. that the appellant inflicted blows with fists and kicks on the body of the deceased is corroborated by the ante mortem injuries received by him.

I also find that assurance is lent to the prosecution case by the circumstances that the FIR of the incident was lodged within 1 1/2 hours of the incident taking place by Shantaram Sonawane P.W. 1.

I further find that the 4 appellants who were inter related had a very plausible and cogent motive to commit the crime. I have referred to the said motive in para 2.

In my view the learned trial Judge acted correctly in accepting the evidence of the four eye-witnesses and in finding the appellants guilty of the offence under section 325 read with 34 of IPC.

9. Mr. G. K. Gole, learned counsel for the appellants, strenuously contended that all the four eye-witnesses are close relations of the deceased and consequently I should not accept their testimony. The circumstances of relationship, in my judgment, would not result in the mechanical rejection of their evidence. The law only requires that the evidence of related witnesses should be scrutinised with caution. I have exercised that caution and find that it inspires confidence. Consequently the submission of Mr. Gole is rejected.

10. Mr. Gole secondly contended that the evidence of the informant Shantaram Sonawane P.W. 1 should not be accepted because Ashok Choudhari another eye-witness in his cross-examination has stated that he came to the place of the incident 10 to 15 minutes after the incident.

I am not inclined to place any reliance on the admission of Ashok Choudhari because the other two eye-witnesses Namdeo Sonawane and Kantilal Pol have categorically deposed about the presence of Shantaram Sonawane. Shantaram Sonawane himself has stated that he has seen the incident and has described the same elaborately in the FIR of the incident which was lodged within 1 1/2 hours of the incident. In my view Ashok Choudhari made this admission under some confusion.

11. This leaves me with only one question viz. that of sentence.

The learned counsel for the appellants strenuously contended that since the incident took place about nearly ten years ago; the victim was only assaulted by fists and kicks; it has not been specified by the eye-witnesses as to whose blow was responsible for injury No.4 on the victim which proved to be fatal; appellants Savanta Pol, Rajesh Pol, Vijay Pol and Krishna Shinde were aged about 33 years, 18 years, 16 years and 74 years at the time of the incident; and there is nothing to indicate that any of the appellants is a previous convict, the jail sentences of the appellants, who have been in jail for over one month as an under trial, be reduced to the period already undergone and in lieu thereof some fine be imposed, which should be directed to be paid as compensation to the wife of the deceased. Considering the over all facts I find merit in this submission and I feel that the jail sentences of the appellants should be reduced to the period already undergone and in lieu of it, each one of them should be directed to pay a fine of Rs. 5000/-.

12. In the result this appeal is partly allowed. Although I confirm the conviction of the appellants for the offence under section 325 read with 34 of IPC and the sentence of fine of Rs. 500/- and 2 months R.I. in default imposed on each of them but I reduce their jail sentence to the period already undergone provided each one of them pays, within a period of 6 months from today a fine of Rs. 5000/-, in the Trial Court, failing which the defaulting appellant/appellants, as the case may be, would undergo a sentence of 18 months R.I. The whole of the fine realized would be paid as compensation to the widow of the deceased Narayan Sonawane and in case she is not alive, or the deceased was unmarried to such legal heirs, as are entitled in law to receive it.

In case the fine is not paid within the stipulated period, the defaulting appellant/appellants, as the case may be, would be taken into custody to serve the sentence, as modified by me.

It would be open to the Trial Court to accept the fine on production of a certified copy of this judgment, which in case an application is made shall be issued to the counsel of the appellants within a period of 8 weeks from today.

Appeal partly allowed.